PEREMPTORY CHALLENGES: PRESERVING AN UNEQUAL ALLOCATION AND THE POTENTIAL PROMISE OF PROGRESSIVE PROSECUTION.

• Author: Leak, Savanna R.

INTRODUCTION 276 I. JUSTIFICATIONS FOR FEDERAL AND STATE ALLOCATIONS OF THE PEREMPTORY CHALLENGE 282 A. History of the Peremptory Challenge Allocation: 284 From England to the United States B. Adoption of the Peremptory Challenge in the United States 285 C. The Federal Rules of Criminal Procedure 287 D. State Allocations of Peremptory Challenges 291 II. JUSTIFICATIONS FOR THE DEFENSE AND 293 PROSECUTORIAL PEREMPTORY CHALLENGE A. The Defense and Prosecutorial Peremptory Challenge 294 B. Batson, Its Progeny, and Its Failures 295 III. THE WISDOM OF EQUALITY: FROM THE 298 THEORETICAL RIGHT TO THE PRACTICAL EXERCISE OF THE PEREMPTORY CHALLENGE A. The Theoretical Right to the Peremptory Challenge & 299 Perceptions of Fairness B. Practical Exercise of the Peremptory Challenge and 302 Actual Fairness IV. LOOKING FORWARD: THE POTENTIAL PROMISE OF 305 PROGRESSIVE PROSECUTION A. Background on Progressive Prosecution 305 B. Progressive Prosecution & The Peremptory Challenge 310 CONCLUSION 313 INTRODUCTION

The peremptory challenge, though not constitutionally guaranteed, has long been considered essential in ensuring that the accused is tried before an impartial jury, a right guaranteed to the accused under the Sixth Amendment. (1) At the same time, the history of peremptory challenges demonstrates their potential for abuse, as lawyers, and particularly prosecutors, have used peremptory challenges to strike jurors on the basis of race and sex. (2) Despite general agreement in the legal community regarding the importance of peremptory challenges and the need for oversight in how the prosecution and defense use them, the federal system and the states do not reach consensus on whether the defense should be afforded a greater number of peremptory challenges than the prosecution, or whether the two sides should have an equal number.

Instead, the relative allocation of peremptory challenges to the defense and prosecution is at once in a state of paralysis and flux. Since the Federal Rules of Criminal Procedure were promulgated in 1946, the federal system has maintained an unequal allocation of peremptory challenges that affords a greater number of peremptory challenges to the defense than the prosecution in noncapital cases, despite repeated legislative attempts to equalize the number of peremptory challenges. (3) However, legislative proposals at the state level to equalize the number of peremptory challenges for each side have been successful. Currently, only nine states maintain an unequal allocation of peremptory challenges to some degree, (4) and only five states afford a greater number of peremptory challenges to the defense than the prosecution in noncapital offenses. (5) This is a substantially different picture than in the mid-twentieth century, when twenty states allocated a greater number of peremptory challenges to the defense for at least some offenses. (6) The stark contrast between the federal system's resistance to equalizing the number of peremptory challenges for noncapital cases and the states' widespread adoption of equalization is surprising, if not troubling. The peremptory challenge is an important component of jury selection. (7) After jurors have been questioned and both the prosecution and defense have made challenges for cause, both sides may use their respective peremptory challenges to strike prospective jurors without providing a reason for the strike. (8) Accordingly, peremptory challenges serve as a kind of safety net at the end of jury selection, whereby parties can eliminate jurors they suspect might be biased or partial to the other side but who do not qualify for a challenge for cause. (9)

However, many in the legal community consider peremptory challenges to be "fraught with potential for abuse" due to the subjective and potentially discriminatory nature of eliminating jurors without being required to provide an explanation. (10) In 1986, the Supreme Court addressed this concern in Batson v. Kentucky.'' The Batson decision prohibited prosecutors from using peremptory challenges to strike potential jurors solely based on race, requiring them to give a neutral reason for any strike. (12) The Batson prohibition was later extended to the defense's use of peremptory challenges and to discriminatory use of the peremptory challenge to strike jurors on the basis of sex. (13) Despite Batson, however, abuse of the peremptory challenge is not an ancient relic, and the Batson test is generally considered to be insufficient to rein in discriminatory use of the peremptory challenge, particularly by the prosecution. (14) A recent and poignant example of prosecutorial abuse of the peremptory challenge is the 2019 Supreme Court case, Flowers v. Mississippi, where the Court found extraordinary evidence of discriminatory intent by the prosecution in its use of peremptory challenges. (15) For these reasons, legislators, judges, and the academic community have long considered how peremptory challenge procedures may safeguard and balance the interests of defendants, victims, and the community, and better promote the fair administration of justice. Some have even called for the abolition of the peremptory challenge altogether. (16)

Given the importance of the peremptory challenge as well as its potential for abuse, the legal community should take note of states' substantial departure from the federal system and consider which approach better serves fairness in our criminal justice system. One might be skeptical about the importance of the relative allocation of peremptory challenges at either the federal or state level, as the difference might involve only a handful of peremptory challenges that may or may not have a noticeable impact on the outcome of a trial. But this is a naive view. Even one peremptory challenge provides potential for abuse on the basis of race or sex and may be "critical to seating fair and impartial juries." (17) And the defendant's and community's perception of the justice system may depend on the relative allocation of peremptory challenges. Accordingly, the legal community should monitor changes and trends in this area closely and consider whether an unequal or equal number of peremptory challenges for the prosecution and defense best serves the justice system. (18)

Arguments for and against equalizing at the federal and state level have in large part centered on theoretical and practical notions of "fairness." (19) For the purposes of this Comment, theoretical fairness encompasses arguments focused on the relative "rights" and "interests" of the defendants, victims of crime, and the community in an impartial jury, as well as how the community perceives the justice system. (20) Practical, or "actual" fairness encompasses arguments considering empirical data on the parties' abuse of peremptory challenges in jury selection. This Comment argues that the states' trend toward equalization of the number of peremptory challenges allocated to the prosecution and defense is unwise because an unequal allocation best serves both notions of fairness, considering the arguments highlighted in the debates over the relative allocation of peremptory challenges throughout its history and the practical use of the peremptory challenge today. If, however, an equal number of peremptory challenges for each side is a worthy goal--a question explored further infra--this Comment argues that the progressive prosecution movement may justify equalizing the number of peremptory challenges between the prosecution and defense in the future.

The notion that the states should maintain an unequal allocation of peremptory challenges is not new in legal scholarship. (21) However, this Comment explores anew the bases for various allocations, which have shifted over time. Further, it takes a novel approach in considering how the progressive prosecution movement may shape the proper allocation of peremptory challenges and perhaps even justify the current shift toward equal allocation of peremptory challenges. Part I discusses the origins of the peremptory challenge and justifications for equal and unequal allocation of peremptory challenges. It considers the English roots of the peremptory challenge, the adoption of the peremptory challenge in the United States, the legislative history surrounding Rule 24 of the Federal Rules of Criminal Procedure--which governs the allocation of peremptory challenges--and state legislative history. Part II discusses the justifications for the right of both the prosecution and the defense to the peremptory challenge, considering arguments from legislative history and relevant case law, including Batson and its progeny. Part III discusses whether the trend toward equalization is wise, considering the justifications provided in Parts I and II. Finally, Part IV examines how progressive prosecution may change the current landscape of fairness in the peremptory challenge context to warrant an equal number of peremptory challenges for both sides.

1. JUSTIFICATIONS FOR FEDERAL AND STATE ALLOCATIONS OF THE PEREMPTORY CHALLENGE

   Peremptory challenges are limited in number, set in the federal system by the Federal Rules of Criminal Procedure and in the states by statute. (22) Currently, the allocation of peremptory challenges varies between the federal government and among the states. In the federal system, Rule 24(b) of the Federal Rules of Criminal Procedure dictates the number of peremptory challenges allocated to the defense and prosecution in criminal cases. (23) The numbers vary by severity of the offense. (24) In capital cases, the defense and prosecution are each allocated twenty peremptory challenges. (25) In noncapital felony cases, the defense is allocated ten peremptory challenges and the prosecution is allocated six. (26) By contrast, most states allocate an equal number of peremptory challenges to the defense and prosecution in both capital cases and noncapital cases, with the...